Archive for July, 2013

I've posted in the past about how various medical conditions can simulate symptoms of intoxication and even cause falsely high breathalyzer readings. One of the more common of these conditions is diabetes, which produces a chemical compound that registers as alcohol on breathalyzers. See Diabetes and the Counterfeit DUI and Drunk Driver…or Diabetic? To make matters worse, a person having a diabetic attack can appear to be intoxicated. See Another Drunk?..or a Diabetic?

The following TV news broadcast and video is a disturbing example of law enforcement's ignorance in this area — and an indictment of their often violent procedures in DUI cases.

Dash-Cam Video Shows Woman's Arrest During Diabetic Episode

Santa Fe. NM. July 19 — Shocking dash camera footage shows a diabetic woman being dragged out of her car by Santa Fe County sheriff deputies, all while she was having a diabetic episode.

Even more alarming she's just left handcuffed on the pavement.

Right now, the sheriff said some things should have been done differently and he takes the matter seriously.

In the video, deputies yank Revina Garcia out of her car. She had just been in a car accident after having a severe diabetic attack and is completely limp.

"I was just lost, I was just lost," Garcia said.

After the slamming into the back of a truck, Garcia said she couldn’t open the door.

"I just didn't know how to open the door," Garcia said.

A deputy shattered Garcia’s car window and pulled her out of the car. Garcia was then thrown on the street face down and handcuffed.

"In this case there was no resistance. We are looking at that very seriously," Santa Fe County Sheriff Robert Garcia said.

With Garcia's face on the ground and her not moving at all, deputies walk away. Garcia said her blood sugar was so low that she could have gone into a coma.

"What concerns me is there is no need to lay someone on the ground for that amount of time. There were other deputies around that could have assisted in at least sitting her up or having her placed in a cruiser," said the sheriff.

Garcia was face down on the pavement for more than a minute, and the Sheriff says he's going to look into just how hot it was that day and how hot that pavement could have been.

The video shows deputies finally taking Garcia to the police car.

"I'm surprised I didn't go into a coma in the back of that police car," Garcia said.

After 10 minutes, paramedics arrived and Garcia was treated for the diabetic episode.

The sheriff said this incident will bring awareness and training to make sure this never happens again. Right now, there's an internal review of Revina Garcia's arrest.

The sheriff plans on meeting with the Garcia family to discuss ways law enforcement can improve and make sure medical issues are considered at each scene and treated properly.

At least the Sheriff didn't try to cover this one up. Of course, there's that video…

The ease with which police can stop, detain and arrest a citizen on suspicion of drunk driving should be cause for concern. The investigation up to the point of arrest and transport to the police station for breath testing is entirely subjective: absent any videotapes, there is no objective evidence to refute the officer's "observations" and "judgment".

This, of course, makes DUI an easy source of police abuse — as the following extreme example illustrates:

Woman Given Breathalyzer Tests 54 Times in a Year

Kidlington, England. July 18 — A British woman said police pulled her over and administered Breathalyzer tests 54 times in a single year before she filed complaints about officers.

Katie Bowman, 24, said Thames Valley Police pulled over on suspicion of drunken driving 54 times in a single year, despite the fact that she does not drink alcohol, The Daily Telegraph reported Thursday.

Bowman said the police were retaliating for a complaint she filed. She did not say what the original complaint was about.

She said notes left on her file by police caused her to lose her job as a paramedic.

"It is absolutely a direct result [of the alleged police action]. That was what was put on my CRB [Criminal Records Bureau check] … that caused me to lose my job," she said.

The Thames Valley Police released a statement in response to Bowman's allegations.

"The need to retain the intelligence reports relating to Ms. Bowman was reviewed in 2012 [following which a number were removed] and again in 2013 following further requests made on behalf of Ms. Bowman," the statement said. "Ms. Bowman has made a number of complaints to Thames Valley Police, some of which were unsubstantiated and some resulted in disciplinary proceedings against officers. In one case Ms Bowman made a complaint against a number of officers, which she subsequently withdrew. Despite the fact she withdrew her complaint, Thames Valley Police continued with disciplinary proceedings against the officers."

"The complaints made specifically about harassment were unsubstantiated," the statement read.

Law enforcement keeps coming up with new and "fool-proof" ways to test a drunk driving suspect for alcohol and drugs, most of which never pan out. An example in yesterday's news:

State Law Enforcement to Test Saliva for Drugs

Ft. Smith, AK. July 21 — Arkansas law enforcement may now test a person’s saliva to determine if they are under the influence of alcohol or drugs. The law was passed in March and went into effect July 17.

Lieutenant Allan Marx with the Sebastian County Sheriff’s Department was a driving force behind the changing law. He said before the Arkansas DWI law changed, officers could test a person’s blood, urine and breath.

Marx said while working a case last year, he learned about saliva testing and recognized a need for it in Arkansas.

“If there’s ever a new way, a new tool that we can use to help not only law enforcement but help the public and the safety of the people out there, it needs to be used,” said Marx. “I believe this product is going to save lives.”…

Due to the infancy of the new law, Marx said the admissibility of the tests have not yet been tried in court. However, he said the tests have been used for years in the hiring process.

“Obviously it’s a brand new law, and that will come into effect,” said Marx. “But there should not be any opposition whatsoever…”

It's touching that Lt. Marx's efforts to get the saliva test adopted for law enforcement were motivated by a desire to "help the public and the safety of the people out there". Oh, by the way…the following is from Lieutenant Marx's own website, GotchaDWI.com:

Marx has become a distributor of an oral saliva drug test called OralTox, created by Premier Biotech. Marx created a website,www.gotchadwi.com, to sell the test kit…

Hmmmm….Strange that there was no mention in the news story about Lt. Marx, "the driving force behind the changing law", having a financial interest in the saliva test.

Sunday, July 12 — If you've been thinking lately that America doesn't resemble the country your parents grew up in, you're right – it doesn't, because it isn't. In fact, America has changed dramatically since the 1950s and 1960s, and not for the better in terms of your rights under the "law" and the Constitution.

Nowhere is this more evident than in cases involving drivers suspected of driving under the influence of alcohol or drugs. Granted, driving under the influence is most certainly dangerous and cops ought to be given the tools to protect us against those who abuse their driving privilege in this manner. But the issue has become so hyper-politicized in recent years that now police are using extra-constitutional techniques in order to determine whether someone has been driving under the influence, all with the blessing of the U.S. Supreme Court.

This blatant Fourth Amendment violation is epitomized in a shocking video recently released online showing police in Georgia strapping down American citizens who have only been accused of driving drunk before using a needle to forcibly draw blood from them.

In this video, which was broadcast on Atlanta's Fox affiliate, one suspect can be heard saying, "What country is this?"

"We all are American citizens and you guys have me strapped to a table like I'm in Guantanamo f***ing Bay," complains another suspect, regarding the forced blood draw.

The policy of police obtaining a warrant to draw blood from those merely suspected of being drunk at a DUI checkpoint or a routine traffic stop has been in place for years across many states, but to actually see it in action is disturbing.

The clip shows individuals being strapped down on a padded table at the Gwinnett County jail. Even those who show no resistance whatsoever are forcibly restrained and have their heads pressed down by an officer using his elbow.

The man who is screaming, "What country is this?" has been identified as Mike Choroski. He is seen protesting as officers forcibly hold him down in order to obtain the sample without his prior consent. Infowars.com reports that he is still awaiting trial; Choroski claims he is not guilty and that there was no accident involving his vehicle.

"I'm a taxpaying American who refused something….I refused to do this….what happened to me in that room was unnecessary and nobody should have to do that," Choroski said.

David Boyle, an attorney, said during an interview with Fox 5 Atlanta that such forced blood draws actually constitutes an "unreasonable search," as in Fourth Amendment.

"Holding down and forcing somebody to submit to this is really intrusive in terms of that level of invasive procedure into someone's body is ridiculous for investigating a misdemeanor," Boyle said in the interview.

The report says cops do first obtain a search warrant, but like Boyle says, they nonetheless force citizens to comply with what is very much an invasive procedure. And, as Infowars.com points out, the threshold for obtaining such a warrant is low:

Despite the fact that citizens can lose their driver's license for a year if they refuse a standard breathalyzer test, cops can then get a warrant to forcibly draw blood, 'for every DUI stop, even if there's no accident or injury.'"

Since January, police in Gwinnett County, Ga. have conducted in excess of 100 forced blood draws – a practice that, until now, was not very widely known (unless you happened to be one of the unfortunate souls who were arrested for DUI in Georgia).

"I'm stunned, I did not know that this was legal, I did not know they could take your blood without your consent," a Fox 5 anchor said in response to the clip, further stating that the process indeed appeared to be a Fourth Amendment violation.

According to reports, Georgia, by far, is not the only state that enforces so-called "no refusal" DUI checkpoints, where cops can forcibly draw blood. That's because in 2005 the nation's highest court ruled, astonishingly, that it is not unconstitutional for states to forcibly hold down citizens and obtain blood samples.

In January 2013, another Supreme Court ruling affirmed that a warrant must first be obtained in order to take the blood sample, but that in an "emergency" police could bypass the warrant requirement.

The "emergency" authorizing the bypass of a search warrant is that the blood-alcohol level may become lower if a warrant has to be obtained — which is possible in all cases (as it is true that the level may actually increase). Warrants, incidentally, are usually obtained very quickly — essentially automatically — by telephone.

It is illegal to have a blood-alcohol concentration (BAC) of .08% or greater while driving a vehicle. It is not illegal to have a BAC of .08% or greater while blowing into a breathalyzer in a police station. In other words, just because a breath test shows a level of, say, .09%, it does not mean that the BAC when the suspect was driving an hour earlier was .09%.

So what was the breath alcohol level when driving?

Well, we’ll never know: There is no evidence of the BAC at the time of actual driving. However, we can be fairly sure that it wasn’t .09%, since the body is constantly either absorbing or eliminating alcohol and the BAC is therefore constantly rising or falling. If it was falling, then we can expect the BAC when driving was higher — .10% or more. But if it was rising…..

Let’s take a typical example. The subject — let’s call her "Janet" — finishes dinner by throwing down "one for the road", a 12-ounce can of beer containing .05% alcohol. She is stopped by an officer soon after leaving the restaurant, alcohol is smelled on her breath and she is given field sobriety tests. She does marginally well but, to be sure, the officer takes her into the police station for breath testing. About 45 minutes after drinking the alcohol, Janet breathes into the breathalyzer. The result: .09%. She is booked and his driver’s license confiscated.

It will take, on average, about one hour for the alcohol to be absorbed and reach peak levels of concentration in the blood, thereafter to be eliminated from the body. This is only an average; it can vary from 15 minutes to 2 hours; some invidividuals can reach peak concentration ten times faster than others. Dubowski, ""Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol, Supp. 10 (July 1985). This makes trying to estimate earlier BAC levels no better than a rough guess, and scientists have unifromly condemned the practice. See, for example, "Breath Alcohol Analysis: Uses, Methods and Some Forensic Problems", 21 Journal of Forensic Sciences 9.

Applying averages to Janet, though, we can expect the last drink to have had little if any effect on her blood-alcohol concentration while she was driving. By the time she is being tested at the station 45 minutes later, however, she is reaching peak concentration. In other words, Janet’s BAC has been rising. At about 120 pounds, we can estimate (read "guess") that the can of beer has increased her BAC by about .031%.

Translation: the breathalyzer reading of .09% at the station indicates a BAC while driving of only .06%. She is not guilty. But the "evidence" will convict her.

Just to make things worse….As I indicated, attempts to guess BACs when driving earlier than when tested have been condemned by scientists. This makes things tough for prosecutors. Solution? As I discussed in an earlier post, "Whatever Happened to the Presumption of Innocence?", most states today have passed laws — directly contrary to scientific truth — which presume that the BAC at the time of being tested is the same as at the time of driving!

In other words, unless the defendant can prove that his BAC was different than when tested, the jury will be instructed that they must find that it is the same. In effect, the defendant is presumed guilty. And since there is no evidence of the BAC when driving, there is no way for the defendant to rebut the presumption.